Outgoing Chief Defends Drivers’ Hours-of-Service Rule

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The nation’s outgoing chief highway safety regulator in her last appearance before Congress defended the whirlwind of initiatives undertaken during her five-year tenure, with the recently revised hours-of-service rule taking center stage.

Anne Ferro, head of the Federal Motor Carrier Safety Administration (FMCSA), testified during a Senate subcommittee hearing on July 29, 2014, that rolling back the agency’s driver rest requirements enacted in 2013 would increase safety risks on the nation’s highways. She also said the FMCSA will continue work on rules to improve highway safety by “raising the bar to enter the motor carrier industry, requiring high safety standards to remain in the industry, and removing high-risk carriers, drivers and service providers from operation.”

In addition to limiting drivers’ working hours, some of these initiatives include expanding oversight enforcement, developing speed-limiting technologies, instituting registries for medical examiners and drivers who test positive for drugs and alcohol, and calling for driver compensation reforms to minimize the economic pressure to speed or drive tired.

Ferro announced her retirement July 25 and will become president and CEO of the American Association of Motor Vehicle Administrators in August.

Retain Rest Rules While Impact Determined

Of all the efforts to reshape federal trucking safety regulations during Ferro’s tenure, the hottest issue is the revised rule limiting truckers’ hours behind the wheel to 70 per week and requiring drivers to stay off the road from 1 a.m. to 5 a.m. on two consecutive days if they use their 34-hour restart option between workweeks.

Previously, drivers were allowed to work up to 60 or 70 hours, take a 34-hour break and then go again. This allowed drivers to accumulate up to 82 working hours in a seven-day period.

As of July 1, 2013, the new rule limited the maximum number of hours a driver can work and drive to 70 per week, by limiting when and how often a driver can take a restart. By requiring that the restart break include two back-to-back nighttime periods of rest from 1 a.m. to 5 a.m., drivers would be off duty for longer than 34 hours to get a valid restart.

“The hours-of-service regulations for truck drivers were updated in 2013 based on extensive research and data to ensure that drivers have the off-duty time they need to be alert behind the wheel,” Ferro told the panel, adding that
fatigue is a leading factor in truck crashes and a significant safety issue overall. The revised regulations only apply to those drivers working more than 60 hours in seven days or 70 hours in eight days, by having their work limited to a maximum average of 70 hours per week.

Ferro told the panel that less than 15 percent of long-haul truck drivers, “those who work the most extreme schedules,” are impacted by the current rule. Those averaging 70 hours per week or less are not affected by the changes because they would never work the number of hours that would require them to use the restart.

Debate over the hours-of-service rule was renewed after a Wal-Mart truck driver was involved in a
​fatal crash that injured celebrity comedian Tracy Morgan in June. Police reports state the driver was nearing the maximum daily allowable time on the road when the collision occurred.

Two days before the crash, the Senate Appropriations Committee approved an amendment sponsored by Sen. Susan Collins, R-Maine, to a Transportation Department funding bill that would suspend the hours-of-service rule for one year until the FMCSA determines its impact on highway safety. Collins and others argue that the limits on overnight driving hours discriminate against nighttime drivers and could increase accidents during the heavy-traffic daylight hours, especially the morning hours when truckers could potentially be restarting their work periods after 5 a.m. The funding bill has been stalled until Congress reconvenes after its August recess.

American Trucking Associations (ATA) Executive Director Dave Osiecki said that operating under the previous hours-of-service regulations, the number and rate of truck-involved crashes, injuries and fatalities all declined dramatically. He argued that fatigue accounts for only about 10 percent of all truck crashes and that regulators should focus instead on cracking down on speeding and driver error and misbehavior.

Osiecki said the ATA supports most driver limits, such as the 11-hour limit on driving time per shift, the maximum 14-hour driving window, the minimum off-duty period of at least 10 consecutive hours, cumulative on-duty time limits, mandatory rest breaks and even the restart rule.

But the organization is particularly opposed to the consecutive nights off requirement. “These restrictions are unwarranted, have unintended economic impacts and may actually increase risk,” he said. “For instance, a recent FMCSA study shows that drivers operating under the new restart rules are more likely to operate during the daytime, when the risk of vehicle interaction and crashes is higher.” The ATA supports suspending the rule until its impact can be studied.

Speaking for drivers, William Dawson, a driver for United Parcel Service and a member of the International Brotherhood of Teamsters, told the committee that “we cannot afford to add to driver fatigue by rolling back hours-of-service regulations.” When asked what the regulations mean to drivers, Dawson responded that without the hours-of-service protections “there is absolutely pressure from employers to get back on the road.”

Dawson said suspending the required consecutive 1 a.m. to 5 a.m. rest periods is a dangerous step. “This consecutive rest period requirement is designed to give drivers rest when their body clock tells them they need it most, during their regular circadian rhythm. This provision is an important element in defeating cumulative fatigue, and FMCSA should have ample time to study the effects of these regulations, enacted one year ago, before any changes are implemented that diminish highway safety,” he said.

Dawson told the committee that the Teamsters union feels so strongly about the issue that even the current 34-hour restart does not provide adequate rest in its view, and consequently many members are not subject to the provision, allowing drivers more rest before starting a new workweek.

“The 34-hour restart is 14 hours short of the normal weekend that most workers have off to rest, recuperate and tend to personal business,” he said. “Most of us cherish our weekend, those two days off that we can spend with our families, but imagine returning to work on a Sunday afternoon instead of Monday morning. That’s what truck drivers face with the 34-hour restart.”

Suspending the Rule Not Necessary

Sen. Kelly Ayotte, R-N.H., pressed the case for suspending the provision while the FMCSA studies its impact on safety. “As I understand it, we have not fully analyzed what the safety impact will be during daytime hours with more trucks on the road,” Ayotte said. “Wouldn’t we want to know before we go forward with this exactly what the impact is on public safety with the added truck traffic?”

Ferro responded that the agency estimates the provision is adding about 250,000 more trucks into daytime traffic, “barely a drop in the bucket compared to the 10 million” already out there, and said rolling it back now, one year after implementation, would itself increase risk by confusing carriers, drivers and enforcers.

Ferro also countered the assertion that the rule will lead to more trucks being in traffic during daylight hours. “We have heard criticism that the new rule discriminates against nighttime drivers and forces them to drive during the day and in prime rush hours. The rule does not prevent carriers and drivers from setting their own schedules, nor does it restrict drivers from being on the road during any time of the day. Whatever the limits on driving and work hours may be, if the motor carrier and driver plan their schedule so tightly that the driver can barely complete the run legally, then problems with completing runs inevitably will occur. That fact cannot support any rollback of the current rule,” she said.

Other Trucking Safety Rules in Progress

The FMCSA finalized a rule in January 2014 giving it the authority to shut down for-hire carriers showing a pattern of safety violations and signed an agreement in July with the Occupational Safety and Health Administration to share worker complaints about safety and retaliation.

The agency also may now formally demand that a motor carrier provide records without having to travel to the motor carrier’s business location.

As of May 2014, only medical examiners listed on the National Registry of Certified Medical Examiners can conduct physical examinations of commercial drivers. To be listed on the registry, medical examiners must complete a training course and pass an exam to show that they understand federal medical standards. The FMCSA expects to have 40,000 physicians certified by the end of the year.

The agency is researching potential rulemaking on obstructive sleep apnea, the safety impacts of detaining drivers for excessively long wait times while cargo is loaded or unloaded, and the possibility of providing greater hours-of-service flexibility, such as split sleep, which divides the 10-hour off-duty period into two separate rest periods.

The agency and trucking industry agree on several important rules and programs in development, including a drug and alcohol clearinghouse, electronic logging devices and the FMCSA’s Pre-Employment Screening Program.

The FMCSA published a proposed rule establishing a clearinghouse that would require truck and bus companies to report verified positive drug and alcohol test results, test refusals, negative return-to-duty test results and follow-up testing. Once implemented, employers would be required to conduct pre-employment searches for all new commercial drivers and annual searches on current drivers. “Such a database would close an existing loophole that allows drivers who violate the drug and alcohol regulations to evade the consequences of their actions by merely obtaining employment elsewhere,” Osiecki said. The ATA also supports more-effective hair tests to meet drug-testing requirements, broader third-party access to the FMCSA’s Pre-Employment Screening Program and requirements to install speed limiter devices.

In March 2014, the FMCSA announced a proposal that would require motor carriers to use electronic logging devices to improve the quality of logbook data and improve compliance with hours-of-service rules. The comment period ended in June, and the agency is currently reviewing more than 1,700 comments.

“We’d have liked to see an electronic logging device rulemaking yesterday,” said Osiecki, adding that he hopes the FMCSA works “toward swift publication of a defensible final rule.”

The ATA urges the FMCSA to explore ways that the agency can actively promote voluntary adoption through the use of incentives, Osiecki added.

Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.